Players, NFL in court Tuesday on concussion issue

FILE - This combo image shows NFL Players' lawyer David Frederick, left, in a November 2008 file photo, and NFL lawyer Paul Clement in a June 2011 file photo. With perhaps billions of dollars stake, a hearing Tuesday, April 8, 2013 over concussion litigation filed against the NFL promises to be a brawl between the legal heavyweights. (AP Photo/File)
— AP

FILE - This combo image shows NFL Players' lawyer David Frederick, left, in a November 2008 file photo, and NFL lawyer Paul Clement in a June 2011 file photo. With perhaps billions of dollars stake, a hearing Tuesday, April 8, 2013 over concussion litigation filed against the NFL promises to be a brawl between the legal heavyweights. (AP Photo/File)
/ AP

“Some days, I lean in one direction; the next, I lean in the other,” Anderson said. “I think the fraud claims will pierce through and survive. But I think the negligence claims many not fare as well. They may be dismissed. The NFL, in the past, has strong precedence on its side on failure-to-warn claims. But if the NFL actually knew, and concealed the risk, that will be strong enough to survive.”

“Both parties know that this is a potential multi-billion dollar issue,” Anderson continued. “The issue is solely based on preemption: Can the litigation remain in court or must it be heard by an arbitrator? If the judge decides to go forward with the case in federal court, then the players can go through discovery. They can go through all the NFL’s dirty laundry, what the League knew and when they knew it. And the League doesn’t want that.

“But if the court decides the claims are preempted, that they all must be decided in front of an arbitrator, there will be limited documents made public. If it goes to an arbitrator, it will, effectively, be over.”

And that, too, will mean that the two Seau wrongful death lawsuits, those of his four children and his parents, could not be tried in court. “If all of the Seaus’ claims are found to be preempted, then they won’t go to trial,” Anderson said.

Anderson estimated that Judge Brody could take three to six months to write her decision. “While there are a lot of retired players out there who are suffering, Judge Brody will apply the law; it’s clearly a legal issue,” he said. “It must be an air-tight decision, so it’s not reversed by the Third Circuit. But who knows, she could make her decision in two weeks, but I think that’s highly doubtful. It’s a very complicated decision.”